I'm a Fellow at the Adam Smith Institute in London, a writer here and there on this and that and strangely, one of the global experts on the metal scandium, one of the rare earths. An odd thing to be but someone does have to be such and in this flavour of our universe I am. I have written for The Times, Daily Telegraph, Express, Independent, City AM, Wall Street Journal, Philadelphia Inquirer and online for the ASI, IEA, Social Affairs Unit, Spectator, The Guardian, The Register and Techcentralstation. I've also ghosted pieces for several UK politicians in many of the UK papers, including the Daily Sport.

Perhaps Richard Stallman Has The Solution To Software Patents?

For those who don’t know who Richard Stallman is, well, he’s one of the great gurus. Replace blogging with programming in this XKCD cartoon, Stallman for Doctorow and you’ve about got it. This does not mean that Stallman is always correct but it does mean that he’s always interesting. And he thinks he’s got a solution to the problem of software patents.

The basic problem being that there are so many patents, covering so many things, that the system is in danger of eating itself like Ourobouros.

When Dan Ravicher of the Public Patent Foundation studied one large program (Linux, which is the kernel of the GNU/Linux operating system) in 2004, he found 283 U.S. patents that appeared to cover computing ideas implemented in the source code of that program. That same year, it was estimated that Linux was .25 percent of the whole GNU/Linux system. Multiplying 300 by 400 we get the order-of-magnitude estimate that the system as a whole was threatened by around 100,000 patents.

If half of those patents were eliminated as “bad quality” – i.e., mistakes of the patent system – it would not really change things. Whether 100,000 patents or 50,000, it’s the same disaster. This is why it’s a mistake to limit our criticism of software patents to just “patent trolls” or ”bad quality” patents. In this sense Apple, which isn’t a “troll” by the usual definition, is the most dangerous patent aggressor today. I don’t know whether Apple’s patents are “good quality,” but the better the patent’s “quality,” the more dangerous its threat.

It’s near impossible to develop new software when there are so many such patents out there. Further, even if you tried to get clearance (or signed up to licenses and so on) to use them it would be near impossible.And we do need to recall what the purpose of a patent system is. No, it isn’t to provide and income to those who create inventions. That’s only the proximate aim: the ultimate aim is to maximise the amount of invention and innovation.

The economics of patents accepts that there is a tradeoff here. Yes, we’d like people who come up with useful new things to make money. Because that incentivises people to work on coming up with interesting new things to all our benefit. However, we also want people to be able to create derivative innovations and inventions. If our protection of the original inventors is too strong then we limit this. What we want is a system that hits the sweet spot, of encouraging the maximum amount of both, original and derivative. The problem of course being that to encourage one we weaken the incentives to do the other, either way around.

There is actually no solution to this: there are only tradeoffs. The same is true of say copyright in music, say sampling. Of the use of characters from a novel in fan fiction. And of course here in software patents.

But with these software patents we really do seem to be in danger of entirely stalling new developments as a result of the protection we give to recent ones. Stallman’s idea is as follows:

My suggestion is to change the effect of patents. We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement. This approach has several advantages….

I’m not sure if he’s right or not. But it certainly is an interesting proposal for a solution. That software used to run an MRI machine can be patented. That running on a smartphone cannot. I would assume that general software could still be copyrighted which is fine as far as I can see. For copyright protects the expression of an idea, not the idea itself. Apple can still protect iOS but anyone who wants to can try to reverse engineer either the OS itself or the functionality.

Whether this is the correct solution or not I am convinced that we’re going to need to come up with one sooner rather than later. For we are in severe danger of stalling future developments as we give too much protection to past ones.

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